Expunction versus Non-Disclosure

Understanding the Differences Between Them

The world of criminal record sealing can often be complex. The most important thing to remember is that, under Texas law, if you have been convicted of any crime - from a Class C misdemeanor up to a Capital Felony - you cannot have that case removed from your criminal record. Unfortunately, short of a few miracles, it will be there forever.

There are three types of criminal record sealing:

• Expunctions
• Non-disclosures
• Juvenile record sealing

Defining Expunction

An expunction is a court order to destroy the criminal records; it is the best type of criminal record sealing. A person is generally entitled to an expunction if he or she:

• Completed a pre-trial diversion program
• Were found "not guilty" by a jury
• Had a criminal case dismissed by the court, without deferred adjudication, and the statute of limitations for the offense has expired

It is obtained in civil district court, in a separate proceeding unrelated to the criminal case; it is even awarded a different cause number than the original criminal case. There are usually about ten entities that have to be served with notice of the expunction lawsuit when it is filed, and those agencies have the right to object to the expunction.

The filing fees tend to be high for expunctions because the district clerk offices charge you to serve each agency. The entities that you choose to notice with the expunction are the entities that you will ask the court to order to destroy their records of your case if the expunction is granted by the court; they are generally the city and county law enforcement agencies, jails and clerks offices in the jurisdiction where you were arrested, the Texas Department of Public Safety, and the federal government.

Once the order is granted the court sends the entities a registered letter informing them that they are required to destroy their records and thus not release to them to the public.

Explaining Non-Disclosure

The other type of adult record sealing is called a non-disclosure. This is for individuals who:

• Were sentenced to deferred adjudication probation
• Complete a waiting period; and
• Do not have a felony criminal conviction on their record in the preceding five years

This proceeding takes place in the criminal court in which you were arrested and supervised; the criminal judge for that court has the authority to grant the non-disclosure. A non-disclosure is a court order that is sent to the Texas Department of Public Safety to literally "not disclose" the records to anyone who asks for them.

Unfortunately, there are exceptions to whom DPS must refuse disclosure; generally, any licensing entity in the state, such as the boards that license teachers, nurses, doctors, and lawyers, is still privvy to the records even after an order of non-disclosure. Depending on your chosen career field, this could be a real problem. Your criminal case, however, should not appear in private commercial background searches; and it if does, sometimes sending the background search company a certified copy of the non-disclosure is necessary.

Finding Your Legal Representation

If you have not been convicted of a crime, I always encourage my clients to seek one of these options even if it is a non-disclosure; you would always rather have less of the public able to see your criminal history and use it against you when trying to find a job or even an apartment.

Call my offices today at (210) 201-7622 to fight against this happening to you.